Interview Questions for BHP ICRP Working Group—Responses by the Independent Environmental Monitoring Agency

Part 1: How well did the process work?

The process used for the writing and review of BHP’s ICRP is summarized in the attached flowchart. Not shown on the flowchart is the set-up of the Working Group. Essentially, the process was made up of several rounds of a cycle that began with submission of a draft document (first the Terms of Reference, then the draft ICRP etc.) followed by its review by the working group, response to review comments by the company, discussion at a working group meeting, verification of which issues were resolved, and, finally, an decision by the Board on any issues remaining unresolved.

  1. What, in your opinion, were the greatest strengths of this process?

The process was comprehensive, very thorough and transparent to all parties. It allowed for achieving clarity and understanding of exactly what was being proposed, and provided ample opportunity (except for funding) for input by affected parties.

  1. What, in your opinion, were the greatest weaknesses of this process?

The process was lengthy, although this is not necessarily a substantive weakness.

It was also a bit cumbersome. There may be too many iterations at each stage. For example, seven steps were taken before the Board approved the ToR. While this allowed for argument, counter-argument, and negotiation between reviewers and the proponent, it may be that there is too much emphasis in this process on reconciliation and consensus. Reducing some of the iterative steps would place more of a decision-making role on the board and board staff. For example, having reviewers comment on the proponent’s draft ToR might be sufficient input if the board (instead of the working group) was to act as arbiter and finalize the ToR after, say, the second step.

Once the ToR were approved, the next review was a complete draft of the ICRP, so that much effort was spent reviewing actual draft text before some key concepts were nailed down. We think there is a better way to go (see next section).

Lack of funding for Aboriginal participation meant that most groups could not effectively participate. There is no doubt that review and approval (and acceptance by the public) of a mine closure plan is a significant component of licensing a project—arguably, it is as critical to get this right as the actual licensing of the project itself. In our view, regulatory review of a closure plan ought to be sufficiently funded so as to enable effective participation of the affected parties such as the Aboriginal communities.

  1. Do you think that this process could be used to evaluate Closure and Reclamation Plans for other water licence holders in the MackenzieValley?
  2. If not, why? Can you identify an alternative process that might be applied more generally?
  3. If yes to the above question, can you identify improvements to the existing process that would be beneficial?

The working group process used in the BHPB ICRP review could be modified to serve as an effective process for the review and approval of mine closure plans in the MackenzieValley. Suggested modifications to improve the process are as follows:

[1] Following issuance of ToR (see Part 2 discussion) to the proponent, the first step is to identify the goals and objectives for closure. A written submission by the proponent should be a conceptual level document stating the overall closure goal(s) for the project and outlining, for each mine component, proposed specific objectives for reclamation and closure. This first paper will need to identify the expected condition at closure of the various mine components that need to be addressed in the closure plan.

[2] This document should then be distributed for review and comment by working group members. The first collaborative session of the working group would be to determine if consensus on the goals and objectives can be attained. If consensus is not achieved, then the process would be either that the Board would decide what the appropriate goals and objectives should be, or that the proponent would proceed to the next stage of development of its draft plan, documenting the different views of the working group members but using its preferred goals and objectives as the basis for subsequent planning.

[3] The next stage is for the proponent to match the specific reclamation and closure objectives with a set of alternative closure options. The second collaborative activity of the working group would then be an evaluation of the closure options in order to identify a preferred option for each component. It is acknowledged that the proponent should have the right ultimately to decide which option for each mine component (as identified in the ToR) it advances for approval, but we view the transparent and collaborative evaluation process, and its outcome, as valuable and necessary input into the proponent’s final formulation of its closure plan and the board’s deliberations on it.

[4] An important exercise in the stage above is to identify any uncertainties about the technical feasibility of proposed reclamation and closure options (possibly even the objectives), so that a research plan can be prepared and implemented. This research plan will need to be an integral element of the draft closure plan.

[5] Once working group consensus is reached on the specific closure options for each mine component, then the proponent would proceed to the next step of preparing a draft closure plan in accordance with the approved ToR. If consensus on options is not reached, then the closure plan should be drafted making explicit the disputed options so that they can be further considered by the board, or alternatively, subject to review in a public hearing if one is held for the closure plan.

  1. Can you comment on any overall principles the MVLWB should keep in mind when defining a process for the review of Closure and Reclamation Plans in the future?

Designing (and operating) for closure must be an over-arching principle. No component of a mining operation should be licensed before its reclamation and closure has been shown to be technically viable in the initial closure plan. Workable reclamation and closure strategies must be built into the design of the project from the beginning. Conditional licences which allow the proponent to submit closure plans after receiving approval should not be used.

Other principles that ought to apply include the following:

  • Transparency;
  • inclusivity of potentially affected parties;
  • accountability: clarity as to who has responsibility for the design and implementation of the plan; and
  • consistency and predictability in the process.
  1. Any other comments?

Part 2: Is it possible to define a generic template for Closure and Reclamation Plans?

General Answer to the Question: There is perhaps a fuzzy line here between a ‘template’ and a ‘terms of reference’ (ToR). A template suggests a fairly rigid structure, or ‘table of contents’, for the document, while a ToR is essentially a set of instructions to the proponent on how to prepare the document. The latter is perhaps more flexible and powerful—that is, the substance of what the plan is to contain can perhaps be better detailed in a ToR. A table of contents emphasises format or structure of the plan more than substance, and our view is that substance is the important focus. We think that having a generic ToR available publicly at the outset would be advantageous. The proviso is that the generic ToR will normally need to be modified on a case by case basis (as all mining projects are unique) and, after a broader review as a draft, approved by the board prior to its use by a proponent.

As a particular comment on the content of the ToR, it is IEMA’s view that a critical element would be a definitions section with key generic terms (e.g., goals, objectives, criteria,) defined.

The MVLWB is interested in providing more detailed guidance to proponents as to what is expected in a Closure and Reclamation Plan. Specifically, is it possible to define a generic template or annotated table of contents for a plan that proponents can use to prepare their plans for submission? In the BHP ICRP process, the Wek’eezhii Land and Water Board approved a “Terms of Reference” for the ICRP that was originally written by BHP but then reviewed by the Working Group. Attached is the table of contents for the BHP ICRP for reference.

  1. What, in your experience as a participant in the BHP process, was the most difficult part of the ICRP to come to consensus on and why?

We’ve interpreted this question to refer to the substantive part of the ICRP, not the review process. In our view, disagreements usually arose between reviewers (who generally had reached consensus among themselves) and the company. The most challenging issues for reviewers were attempting to reach agreement with the company to do the following in its draft ICRP:

  • properly formulate closure objectives for specific mine components;
  • identify meaningful and measurable closure criteria;
  • consider closure options that were novel (e.g., disposing of PK in the Beartooth pit which had an early closure date assigned to it);
  • properly formulate (and, importantly, execute) a reclamation research plan that linked closure objectives, uncertainties, and approaches to getting timely and effective solutions in a coherent fashion;
  • ensure that its selected closure option is consistent with its stated overall reclamation goal (deciding against fish use of the pit lakes is inconsistent with the goal). (In our view, if the high standard set in the goal statement is not being effectively sought by the proponent, then the goal statement should be adjusted to accurately reflect what the company is willing to do.)

The above are issues that will invariably arise in the development of other closure plans. It would be a good investment for the board to design more detailed guidance as to what is required on these fronts by proponents, and what can be expected by other participants, as it develops a more generic approach on closure planning.

  1. Do you think that the BHP Terms of Reference were fully compatible with INAC’s Mine Site Reclamation Guidelines?

Our quick response is the ToR were largely compatible with the Mine Site Reclamation Guidelines. It is noted, however, that the completion report and performance assessment reports described by the Guidelines are not explicitly covered in the ToR. A more definitive response would require a careful analysis of the two documents, and a comparison of this content with what is expected in the ICRP—something which we have not conducted. Perhaps a more important task ahead will be to compare the next draft of the ICRP against the ToR and the Guidelines to determine conformity.

  1. Putting aside the obvious differences between mine components, is the format and content of the BHP ICRP adaptable for use at other mines in the MackenzieValley?
  2. If yes, are there sections of the ICRP could use more clarification or definition? Should any sections be deleted?
  3. If no, do you think it impossible to have a generic template for all mines or that we would need to start from scratch?
  4. If no, are there any sections from the current ICRP format that could be directly applied to another development’s Closure and Reclamation Plan? (e.g., the “Reclamation Goal, Closure Objectives and Criteria Framework” or the format of tables in the appendices for Closure Objectives/Criteria or Reclamation Research)
  5. Do you have any suggestions as to how best to prepare a generic Closure and Reclamation Plan template for proponents in the MackenzieValley?
  6. Any other comments on the required content of a Closure and Reclamation Plan?